NEWS ANALYSIS

In May 2015 Mxolisi Nxasana suddenly had it pretty good. True, he had just lost one of the most important and high-profile jobs in the country, but he left it with a statement from President Jacob Zuma that he was “professionally competent and possesses the requisite experience and integrity required to hold a senior position”.

He also, as South Africans discovered later, left with a package that would amount to more than R17-million after only 21 months in the job of national director of public prosecutions (NDPP).

Then, in April this year, it got better.
Breaking years of silence, Nxasana filed an affidavit in which he told a tale of a president lying under oath about events during which he, Nxasana, heroically struggled to defend democracy.

That was quite the turnaround from a low in February 2015, when he was informed that Zuma had established an inquiry into his fitness to hold the office of the NDPP. Zuma questioned whether Nxasana had a history of violence, and whether he was undermining the National Prosecuting Authority (NPA) .

Fast forward 32 months and Nxasana now faces yet another change in fortunes: the prospect of losing that R17-million he swapped for his job — without getting the job back again — and being perceived, if not judged, to have accepted a bribe.

Meanwhile, Nxasana’s fate is now closely tied to that of Zuma; whether Nxasana keeps his job may determine who decides whether or not to criminally pursue Zuma. That, in turn, depends on exactly what transpired during a closed-door meeting between Zuma and Nxasana.

Under ordinary circumstances that would make things simple. Meetings between a president and a prosecutions head tend to feature other members of their respective teams. This one did not. Such meetings tend to be fastidiously documented. This one was not. Decisions taken during such meetings are, as a matter of course, reduced to writing and confirmed. In this case they were not.

The meeting was between two people entrusted with enormous power and who should be trustworthy. But in this case one has been accused of trying to duck criminal culpability and the other has been said to have been out to line his pocket, and so neither can be taken at their word.

This week those extraordinary circumstances left the high court in Pretoria faced with several contradictory accounts of what happened during that fateful meeting.

If, during that meeting, Nxasana did not specifically ask to leave his post, then Zuma had no legal basis to send him off with a golden handshake, Corruption Watch and Freedom Under Law told the court.

Zuma, the organisations held, gave only “a cryptic, and a very improbable account” of what happened. On Monday the court refused to accept a late filing by Nxasana of his own version, and so the circumstantial evidence must make the case, the civil society organisations said. They think that evidence is pretty clear.

“This is a president who had first tried to bully Mr Nxasana out of office with threats of an inquiry, and having not succeeded is now trying to seduce him, to bribe him with public money,” is how Freedom Under Law’s advocate Wim Trengove summarised a series of letters.

To the contrary, it is clear what happened, countered Zuma’s advocate Ishmael Semenya. According to the law that guards the NDPP’s independence, the question of how much he is paid on leaving arises only after he has asked to leave, said Semenya. It is clear that Zuma and Nxasana negotiated a price, and therefore he must have asked to leave. “The ‘how much’ cannot arise if the ‘leaving’ is not already agreed,” he said.

“Is the president saying that Mr Nxasana took an irrevocable decision [to resign] without knowing how much was on the table?” asked Judge Willem van der Linde, one of three judges on the Bench.

“Indeed,” said Semenya.

In that case, asked presiding Judge Dunstan Mlambo, when did he make this decision, and where could it be found reduced to writing?

The implication is that — in the version of the president who shortly before suspected him an unfit menace — Nxasana selflessly offered to step aside with no thought of money. Perhaps it was in recognition of this nobility of character that Zuma then decided to give him R17-million. Zuma himself has offered no other explanation for that large sum, which all the parties now agree (or do not dispute) was paid unlawfully.

At the same time the civil society organisations — which, as a by-product of their legal argument, described Nxasana as someone who accepted something close to a bribe — say he may have to be reinstated as NDPP without any thought for what his conduct says about his moral fibre.

Alternatively, they said, Deputy President Cyril Ramaphosa could be given the power to appoint a new NDPP, a suggestion that drew furious fire from Zuma’s team as both irrational and unconstitutional.

Either way, if current (Zuma-appointed) NDPP Shaun Abrahams is to be guaranteed he will keep his job, he needs the court to find that Nxasana’s removal was proper. Yet on Tuesday Abrahams’ advocate Hilton Epstein contradicted Zuma’s version. “If I get the money that I want … then I will be prepared to go,” Epstein described Nxasana’s approach to his departure. “So once he is seduced by the money he expresses a willingness to go.”

Yet the court could not ignore the fact that Nxasana did leave the job, however improper his motive, nor should it reward him for now opportunistically trying to swap the money he stands to lose anyway for the job he gave up, argued Epstein.

If the court does not accept that, Abrahams may have to go simply because his appointment had been legally impossible.

“No one can be appointed to a position that in law is already occupied,” said Corruption Watch advocate Matthew Chaskalson. Whether or not Abrahams will then get a golden handshake is an open question.

The possible outcomes are legion. Abrahams could stay, or go, or go and then be reappointed. Nxasana could get his job back, or not. If he does he may then face a new inquiry into his fitness to hold that office, or not. He is unlikely to hold on to the R17-million either way. Zuma could be tasked with appointing a new NDPP, or could be disqualified from hiring or firing any NDPP for his short time left in office.

And any of these things could be in a judgment that comes either before or after the ANC’s elective conference next month, with its promise to shake up the cast of characters.

The court would try to expedite matters, Mlambo said in reserving judgment on Tuesday, but he made no promises on when that judgment will be delivered.

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet